101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB4436

 

Introduced 2/3/2020, by Rep. Fred Crespo

 

SYNOPSIS AS INTRODUCED:
 
760 ILCS 100/2  from Ch. 21, par. 64.2
760 ILCS 100/3  from Ch. 21, par. 64.3

    Amends the Cemetery Care Act. Provides that the net income of a cemetery authority does not include any capital gains from the investment of any gift, grant, contribution, payment, legacy, or sum of money, funds, securities, or property of any kind given to it for the care of its cemetery or any lot, grace, crypt, or niche in its cemetery or the special care of any lot, grave, crypt, or niche or family mausoleum or memorial, marker, or monument in its cemetery. Effective immediately.


LRB101 15876 LNS 66017 b

 

 

A BILL FOR

 

HB4436LRB101 15876 LNS 66017 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Cemetery Care Act is amended by changing
5Sections 2 and 3 as follows:
 
6    (760 ILCS 100/2)  (from Ch. 21, par. 64.2)
7    Sec. 2. Definitions. The following words, terms and phrases
8used in this Act, for the purpose of this Act, have the
9following meanings:
10    "Person" means any person, partnership, association,
11corporation, or other entity.
12    "Trustee" means any person authorized to hold funds under
13this Act.
14    "Capital gains" means a profit that results from a
15disposition of a capital asset, such as stock, bonds, or real
16estate, where the amount realized on the disposition exceeds
17the purchase price.
18    "Comptroller" means the Comptroller of the State of
19Illinois.
20    "Care" means the maintenance of a cemetery and of the lots,
21graves, crypts, niches, family mausoleums, memorials, and
22markers therein; including: (i) the cutting and trimming of
23lawn, shrubs, and trees at reasonable intervals; (ii) keeping

 

 

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1in repair the drains, water lines, roads, buildings, fences,
2and other structures, in keeping with a well maintained
3cemetery; (iii) maintenance of machinery, tools, and equipment
4for such care; (iv) compensation of employees, payment of
5insurance premiums, and reasonable payments for employees
6pension and other benefits plans; and (v) to the extent surplus
7income from the care fund is available, the payment of overhead
8expenses necessary for such purposes and for maintaining
9necessary records of lot ownership, transfers, and burials.
10    "Care funds" as distinguished from receipts from annual
11charges or gifts for current or annual care, means any realty
12or personalty impressed with a trust by the terms of any gift,
13grant, contribution, payment, legacy, or pursuant to contract,
14accepted by any cemetery authority owning, operating,
15controlling or managing a privately operated cemetery, or by
16any trustee or licensee, agent or custodian for the same, under
17Section 3 of this Act, and the amounts set aside under Section
184 of this Act, and any income accumulated therefrom, where
19legally so directed by the terms of the transaction by which
20the principal was established.
21    "Cemetery" means any land or structure in this State
22dedicated to and used, or intended to be used, for the
23interment of human remains.
24    "Cemetery authority" means any person, firm, corporation,
25trustee, partnership, association or municipality owning,
26operating, controlling or managing a cemetery or holding lands

 

 

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1for burial grounds or burial purposes in this State.
2    "Mausoleum crypt" means a space in a mausoleum used or
3intended to be used, above or under ground, to entomb human
4remains.
5    "Family burying ground" means a cemetery in which no lots
6are sold to the public and in which interments are restricted
7to a group of persons related to each other by blood or
8marriage.
9    "Fraternal cemetery" means a cemetery owned, operated,
10controlled, or managed by any fraternal organization or
11auxiliary organizations thereof, in which the sale of lots,
12graves, crypts or niches is restricted principally to its
13members.
14    "Grave" means a space of ground in a cemetery, used, or
15intended to be used, for burial.
16    "Investment Company Act of 1940" means Title 15, of the
17United States Code, Sections 80a-1 to 80a-51, inclusive, as
18amended.
19    "Investment Company" means any issuer (a) whose securities
20are purchasable only with care funds or trust funds, or both;
21and (b) which is an open and diversified management company as
22defined in and registered under the "Investment Company Act of
231940"; and (c) which has entered into an agreement with the
24Comptroller containing such provisions as the Comptroller by
25regulation reasonably requires for the proper administration
26of this Act.

 

 

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1    "Municipal cemetery" means a cemetery owned, operated,
2controlled or managed by any city, village, incorporated town,
3township, county, or other municipal corporation, political
4subdivision, or instrumentality thereof authorized by law to
5own, operate, or manage a cemetery.
6    "Niche" means a space in a columbarium used or intended to
7be used, for inurnment of cremated human remains.
8    "Principal" means an original sum invested and any capital
9gains.
10    "Privately operated cemetery" means any entity that offers
11interment rights, entombment rights, or inurnment rights,
12other than a fraternal, municipal, State, federal or religious
13cemetery or a family burying ground.
14    "Religious cemetery" means a cemetery owned, operated,
15controlled, or managed by any recognized church, religious
16society, association or denomination, or by any cemetery
17authority or any corporation administering, or through which is
18administered, the temporalities of any recognized church,
19religious society, association or denomination.
20    "State or federal cemetery" means a cemetery owned,
21operated, controlled, or managed by any State or the federal
22government or any political subdivision or instrumentality
23thereof.
24    "Entombment right" means the right to place individual
25human remains or individual cremated human remains in a
26specific mausoleum crypt or lawn crypt selected by the consumer

 

 

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1for use as a final resting place.
2    "Interment right" means the right to place individual human
3remains or cremated human remains in a specific underground
4location selected by the consumer for use as a final resting
5place.
6    "Inurnment right" means the right to place individual
7cremated human remains in a specific niche selected by the
8consumer for use as a final resting place.
9    "Lawn crypt" means a permanent underground crypt usually
10constructed of reinforced concrete or similar material
11installed in multiple units for the entombment of human
12remains.
13    "Imputed value" means the retail price of comparable rights
14within the same or similar area of the cemetery.
15(Source: P.A. 92-651, eff. 7-11-02.)
 
16    (760 ILCS 100/3)  (from Ch. 21, par. 64.3)
17    Sec. 3. Gifts and contributions - Trust funds. Any cemetery
18authority is hereby authorized and empowered to accept any
19gift, grant, contribution, payment, legacy, or pursuant to
20contract, any sum of money, funds, securities or property of
21any kind, or the income or avails thereof, and to establish a
22trust fund to hold the same in perpetuity for the care of its
23cemetery, or for the care of any lot, grave, crypt or niche in
24its cemetery; or for the special care of any lot, grave, crypt
25or niche or of any family mausoleum or memorial, marker, or

 

 

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1monument in its cemetery.
2    The cemetery authority shall act as trustee of all amounts
3received for care until they have been deposited into the trust
4fund established under this Section. The cemetery authority may
5continue to be the trustee of up to $500,000 of care funds that
6have been deposited into the trust fund, but the cemetery
7authority must retain an independent trustee for any amount of
8care funds held in trust in excess of that $500,000. A cemetery
9authority holding care funds in excess of $500,000 on the
10effective date of this amendatory Act of 1996 shall have 36
11months to retain an independent trustee for the excess amounts
12held in trust; any other cemetery authority must retain an
13independent trustee for its care funds in excess of $500,000 as
14soon as may be practical.
15    No gift, grant, legacy, payment or other contribution shall
16be invalid by reason of any indefiniteness or uncertainty as to
17the beneficiary designated in the instrument creating the gift,
18grant, legacy, payment or other contribution. If any gift,
19grant, legacy, payment or other contribution consists of
20non-income producing property, the cemetery authority
21accepting it is authorized and empowered to sell such property
22and to invest the funds obtained in accordance with the
23provisions of the next succeeding paragraph.
24    The care funds authorized by this Section and provided for
25in Section 4 of this Act shall be held intact and, unless
26otherwise restricted by the terms of the gift, grant, legacy,

 

 

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1contribution, payment, contract or other payment, as to
2investments made after June 11, 1951 the trustee of the care
3funds of the cemetery authority, in acquiring, investing,
4reinvesting, exchanging, retaining, selling and managing
5property for any such trust, shall exercise the judgment and
6care under the circumstances then prevailing, which persons of
7prudence, discretion and intelligence exercise in the
8management of their own affairs, not in regard to speculation
9but in regard to the permanent disposition of their funds,
10considering the probable income as well as the probable safety
11of their capital. Within the limitations of the foregoing
12standard, the trustee of the care funds of the cemetery
13authority is authorized to acquire and retain every kind of
14property, real, personal or mixed, and every kind of
15investment, including specifically but without limiting the
16generality of the foregoing, bonds, debentures and other
17corporate obligations, preferred or common stocks and real
18estate mortgages, which persons of prudence, discretion and
19intelligence acquire or retain for their own account. Within
20the limitations of the foregoing standard, the trustee is
21authorized to retain property properly acquired, without
22limitation as to time and without regard to its suitability for
23original purchase. The care funds authorized by this Section
24may be commingled with other trust funds received by such
25cemetery authority for the care of its cemetery or for the care
26or special care of any lot, grave, crypt, niche, private

 

 

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1mausoleum, memorial, marker, or monument in its cemetery,
2whether received by gift, grant, legacy, contribution,
3payment, contract or other conveyance heretofore or hereafter
4made to such cemetery authority. Such care funds may be
5invested with common trust funds as provided in The Common
6Trust Fund Act. The net income only from the investment of such
7care funds shall be allocated and used for the purposes
8specified in the transaction by which the principal was
9established in the proportion that each contribution bears to
10the entire sum invested. Net income does not include any
11capital gains from the investment of such care funds.
12(Source: P.A. 89-615, eff. 8-9-96.)
 
13    Section 99. Effective date. This Act takes effect upon
14becoming law.